United States: OSHA Issues Final Rules on Whistleblower Protection

On July 10, 2012, the Occupational Safety and Health Administration (OSHA) issued final rules governing the whistleblower protection contained in the Consumer Product Safety Improvement Act of 2008 (CPSIA). The rules, which went into immediate effect, established the procedures and time frames for handling CPSIA retaliation complaints.

Although overshadowed by new restrictions and enforcement mechanisms mandated by the CPSIA, vital protections for whistleblowers against employer retaliation were included. Specifically, Section 219 of the CPSIA prohibits employers from retaliating against an employee who provides to the employer, the Federal Government, or the attorney general of a state, information relating to any violation of any provision of any act enforced by the Consumer Product Safety Commission (CPSC).

Enforced by OSHA, CPSIA whistleblower protections apply to manufacturers, private labelers, distributors, and retailers of consumer products. These entities are prohibited from discharging or otherwise discriminating against employees with regard to compensation, terms, conditions or privileges of employment because they participated in any of following protected activities:

Complaints and Investigations

Employees who believe they have been retaliated against in violation of the CPSIA must file a complaint with OSHA within 180 days of the date of the alleged violation occurs, or the date from which the employee is aware—or reasonably should be aware—of the employer's retaliatory decision.

OSHA then must notify the employer of the filing, and a preliminary investigation involving input from the employee and employer is conducted. The employee must make an initial prima facie showing that the protected activity was a contributing factor in the adverse action alleged in the compliant. This burden can be satisfied by showing that the adverse action took place shortly after the protected activity, giving rise to the inference that the protected activity was a contributing factor. If the employee does not make a prima facie showing, the investigation must be discontinued and the complaint dismissed. If the prima facie showing is made, OSHA will issue written findings on whether there is reasonable cause to believe the employer retaliated against the employee in violation of the CPSIA. If reasonable cause is found, the assistant secretary will issue a preliminary order providing appropriate relief to the employee which may include, where appropriate, preliminary reinstatement, back pay with interest, compensatory damages, and attorneys' fees and other expenses reasonably incurred in bringing the complaint.

Upon such a finding, there is an opportunity to object and request a de novo hearing before an administrative law judge (ALJ). The ALJ will make a determination that a violation has occurred only if the employee demonstrates by a preponderance of the evidence that a protected activity was a contributing factor in the adverse action alleged in the complaint. An employer may rebut such a showing only by demonstrating through clear and convincing evidence that, absent the protected activity, it would have taken the same adverse action.

If the ALJ concludes the employer has violated the law, an order requiring appropriate remedial action will be issued, which may include reinstatement, back pay and interest, compensatory damages and attorneys' fees and expenses reasonably incurred. Likewise, the ALJ may award the employer reasonable attorneys' fees—not to exceed $1,000—if the complaint was frivolous or brought in bad faith.

Upon the issuance of the ALJ's decision, the parties have 14 days within which to petition the Administrative Review Board (ARB) for review of that decision, or it becomes final and is not subject to judicial review. If a timely petition for review is filed, the decision of the ALJ will become the final order of the U.S. Secretary of Labor unless the ARB accepts the petition within 30 days of its filing. If accepted for review, the final decision of the ARB must be issued within 120 days of the conclusion of the hearing.

Court Action and Settlements

An employee can file an original de novo action in the U.S. District Court if no final decision has been issued within 90 days after receiving written determination of the assistant secretary, or within 210 days of the filing of the complaint.

At any time prior to the filing of objections to OSHA's findings and/or preliminary order, an employee may withdraw a complaint. If the complaint is withdrawn because of settlement, the settlement must be submitted for approval by the assistant secretary. Any settlement proposed after the filing of objections to OSHA's findings and/or preliminary order must be approved by either the ALJ or the ARB, depending on which body it is before at the time of settlement.

Conclusion

The CPSIA whistleblower provision is just one of 21 federal whistleblower statutes enforced by OSHA. To ensure compliance with the CPSIA, it is critical that employers implement and enforce compliance policies and procedures, and make sure employees receive the necessary training to ensure compliance.

Originally published on American Bar Association http://apps.americanbar.org/litigation/committees/products/news.html

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